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bob7947

COFC Use of Kingdomware Ruling Made by SCOTUS

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It is important to note that the COFC’s interpretation applied to a preaward circumstance involving the definition of “task order”. Specifically, NASA was seeking to evaluate a broad range of relevant experience under contracts with different customers. NASA decided that, for purposes of evaluating past performance, a “task order” was not a contract. The protestor argued that NASA was obligated to evaluate 10 task orders under a single contract as 10 separate contracts.

 

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On April 22, 2016, GSE filed a bid protest in this Court alleging, in part, that NASA improperly evaluated its past performance by not considering the ten task orders to be ten separate “projects” under the Solicitation. Id. at 423. On May 24, 2016, the Court dismissed the protest without prejudice because NASA agreed to vacate its selection decision and re-evaluate the firms’ submissions. Id. at 443. In the interest of fairness, NASA invited GSE and K.S. Ware to update their past performance submissions. Id. at 466. Specifically, NASA informed the firms that “the requirements have not changed as it relates to Past Performance. . . . [A] contract will be considered a single contract regardless of the number of task orders issued under the contract.” Id. Instead of updating its past performance submission, on July 1, 2016, GSE filed an agency level protest arguing that task orders are contracts as a matter of law. Id. at 642. NASA denied 4 GSE’s protest stating that “[t]ask orders are not contracts.” Id. at 656. It further explained that the rationale behind the past performance criterion was to seek feedback from “as many customers as possible.” Id. at 658. The task orders were deemed to have only limited relevance because “[h]earing from one COR on ten different task orders does not provide the same insight into a contractor’s past performance as hearing from ten CORs on ten different contracts.” Id.  

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The term “task order” was defined within the context of a solicitation provision, not within the context of an option exercise. So, I don’t believe the GREAT SOUTHERN ENGINEERING decision affects the definition of a “task order” as a contract when dealing with the exercise of options. See the Government Contractor article found here: https://media2.mofo.com/documents/160803gaoallworld.pdf.

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Guest Jason Lent

I think the fuzziness of the term "contract" is such an interesting thing, since I'd imagine the most fundamental and important word to define in acquisition is "contract".

"Kingdomware does not stand for the general proposition that all task orders are considered contracts as a matter of law."

I read that as implying task orders are only contracts if the applicable and relevant laws say they are contracts. Am I missing something here?

 

EDIT: After reading more, it seems I had it backwards: Task orders are contracts unless specifically stated otherwise.

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It's important to remember that FAR 2.101 defines the term contract --

“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see part 16. (see also, DAR Council Interprets 'Contract' to Include Task and Delivery Orders)

As napolik mentioned: it's also important to note the context.

The commentary that is sure to follow these cases will be interesting. The Government Contractor article is a good read. It highlights GAO's interpretation that “orders under FSS contracts are not them-
selves stand-alone contracts”. So now we have 'contract' and 'stand-alone contract' terminology.

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3 hours ago, Jason Lent said:

I think the fuzziness of the term "contract" is such an interesting thing, since I'd imagine the most fundamental and important word to define in acquisition is "contract".

There is nothing "fuzzy" about the definition of contract in FAR 2.101. It's as clear as can be that task orders are contracts within the meaning of that definition. But Judge Wheeler's decision does not turn on the definition of contract in FAR, but on the use of the word in NASA's solicitation. The issue in the COFC decision was what NASA meant by contract in its solicitation, and Judge Wheeler decided that:

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NASA has the authority to decide what past performance is relevant to a particular procurement. PlanetSpace, 92 Fed. Cl. at 539 (“[W]hat does or does not constitute ‘relevant’ past performance falls within the [agency’s] considered discretion.”). It did not arbitrarily decide that GSE’s experience with NASA was completely irrelevant, instead it determined the task orders had limited relevance because they occurred under one contract. An agency’s past performance evaluations during a negotiated procurement warrants the greatest possible deference, and the Court sees ample reason to defer to NASA’s past performance evaluation. Glenn Defense Marine (ASIA), 720 F.3d at 911.

I'll wager $100 that GSE's lawyers did not argue that the solicitation included (or should have) FAR 52.202-1, Definitions (NOV 2013), which says in pertinent part:

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When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless—

(a) The solicitation, or amended solicitation, provides a different definition;

(b) The contracting parties agree to a different definition;

(c) The part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning; or

(d) The word or term is defined in FAR Part 31, for use in the cost principles and procedures.

If they had, and if NASA did not define contract in the solicitation, then GSE's lawyers could have argued that NASA was bound by the FAR definition of contract, which certainly seems to include orders. That might not have persuaded Judge Wheeler and settled the matter, but it might have put constraints on NASA's freedom of interpretation.

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Paragraph (a) of the definition of a contract seems to apply in the Great Southern Engineering decision. NASA provided a different definition of contract for purposes of evaluating past performance: 

"Specifically, NASA informed the firms that “the requirements have not changed as it relates to Past Performance. . . . [A] contract will be considered a single contract regardless of the number of task orders issued under the contract.

 

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